Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Weil v. State (2/18/2011) ap-2295

Weil v. State (2/18/2011) ap-2295

                                                 NOTICE 
        The text of this opinion can be corrected before the opinion is published in thePacific 
        Reporter.   Readers are encouraged to bring typographical or other formal errors to 
        the attention of the Clerk of the Appellate Courts. 

                                303 K Street, Anchorage, Alaska  99501
 
                                          Fax:   (907) 264-0878
 
                          E-mail:   corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

MICHAEL S. WEIL,                                  ) 
                                                  )          Court of Appeals No. A-10586 
                            Appellant,            )         Trial Court No. 3KN-08-1017 CR 
                                                  ) 
             v.                                   ) 
                                                  )                 O   P  I  N  I  O  N 
STATE OF ALASKA,                                  ) 
                                                  ) 
                            Appellee.             ) 
                                                  )            No. 2295 - February 18, 2011 

                 Appeal from the District Court, Third Judicial District, Kenai, 
                 Sharon Illsley, Judge. 

                 Appearances: Kenneth W. Cole, Kenneth W. Cole Law Offices, 
                 Kenai, for the Appellant.       Martin C. Fallon, Assistant District 
                 Attorney,    Kenai,    and Daniel    S.  Sullivan,   Attorney   General, 
                 Juneau, for the Appellee. 

                 Before:    Coats,    Chief   Judge,    and  Mannheimer       and  Bolger, 
                 Judges. 

                 BOLGER, Judge. 

                 A state trooper contacted Michael S. Weil because it appeared that Weil was 

going to cross a road with his dog tethered to his four-wheeler. As a result of this contact, 

Weil was convicted of driving under the influence.                Weil challenges the denial of his 

motion   to   suppress,   arguing   that   the   district   court   erred   in   upholding   his   stop   as   a 

----------------------- Page 2-----------------------

community caretaker stop.      We affirm Weil's conviction because we conclude that the 

trooper was justified in stopping Weil to avoid a potential threat to public safety. 

       Background 

              On June 14, 2008, at about 2:30 a.m., Alaska State Trooper Lawrence C. 

Erickson was driving down Kalifornsky Beach Road toward Soldotna when he noticed 

a four-wheeler coming down a gravel side street with a dog tied to it.  The four-wheeler 

was driving down the right side of the street toward Kalifornsky Beach Road and the dog 

was walking down the middle of the street on a long lead.  Sergeant Erickson made a U- 

turn and activated his overhead lights, intending to contact the driver to warn him not to 

drive his four-wheeler across the road.    It was dark, there was traffic on the road, and 

Sergeant Erickson believed it would be unsafe for the dog and for any motorists who 

might be forced to take evasive action. 

              When Sergeant Erickson contacted the driver, Weil, he noticed that Weil 

was "obviously drunk and impaired."   There was an open beer and two unopened beers 

on the rear rack of the four-wheeler next to the driver's seat.   A subsequent breath test 

showed that Weil's blood alcohol content was .226 percent.         Weil was charged with 
driving under the influence.1 

              Before trial, Weil filed a motion to suppress the evidence, arguing that his 

stop was not supported by reasonable suspicion. At an evidentiary hearing on the motion, 

Sergeant Erickson testified that the only reason he stopped Weil was to warn him not to 

drive his four-wheeler across the road; Erickson said he did not believe it would be safe 

for Weil to "cross [the] highway with vehicles in the traffic flow with a dog tied to [his] 

       1   AS 28.35.030(a). 

                                           - 2 -                                        2295 

----------------------- Page 3-----------------------

four-wheeler."  After hearing this testimony, District Court Judge Sharon Illsley denied 

the motion to suppress, concluding that the stop was a valid community caretaker stop. 

                Weil filed a motion for reconsideration, which Judge Illsley denied.  Weil 
then   entered   a  Cooksey2    plea   to   driving   under   the   influence, preserving   his   right   to 

challenge the denial of his motion to suppress. 

         Weil's stop was a valid community caretaker stop. 

                The parties do not challenge Judge Illsley's ruling that Weil was subjected 

to a Fourth Amendment seizure; the only claim on appeal is whether the court erred in 

ruling that Weil's seizure was a lawful community caretaker stop.  In Ozhuwan v.  State, 

we held that a Fourth Amendment seizure may be justified without reasonable suspicion 

of criminal activity if the police are validly acting within their community caretaker role 

- that is, if the police are aware of specific circumstances supporting a reasonable belief 
that police assistance is required.3  In reviewing the trial court decision to uphold the stop, 

we view the facts in the light most favorable to the trial court's ruling.4 

                Weil     argues   that  Judge    Illsley  clearly   erred   in  finding   that  Sergeant 

Erickson's purpose in contacting him "had nothing to do with investigating a crime." 

He concedes that Erickson testified at the suppression hearing that his only reason for 

stopping Weil was to prevent him from driving his four-wheeler across the road with a 

dog tethered to it.     But Weil argues that, notwithstanding this testimony, "the Defense 

submits that the true purpose of the stop was to investigate."  To support this claim, Weil 

        2   Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). 

        3   786 P.2d 918, 922 (Alaska App. 1990); see also Crauthers v. State, 727 P.2d 9, 

10-11 (Alaska App. 1986) (citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). 

        4   See Howell v. State, 115 P.3d 587, 590 (Alaska App. 2005). 

                                                  -  3 -                                              2295 

----------------------- Page 4-----------------------

asserts that "[i]t was after midnight and the officer saw activity and wanted to check it 

out.  That [was] the basis for the stop, unbridled suspicion."   He argues that Erickson's 

testimony that the stop was motivated by safety concerns was not credible because his 

four-wheeler was forty feet from the main road. 

              The record supports Judge Illsley's decision on this point. Sergeant Erickson 

testified that the four-wheeler was about twenty feet from the road when he contacted 

Weil.  And,  as Judge Illsley found, Weil's own exhibits showed that his twenty-foot dog 

lead, fully extended from the location of the stop, came within several feet of the fog line 

on Kalifornsky Beach Road. 

              Judge Illsley could also reasonably reject Weil's claim that Sergeant Erickson 

stopped him to investigate a possible crime.   Judge Illsley found that Erickson observed 

Weil driving his four-wheeler toward a busy major road after dark with a dog tethered 

to it, and that Erickson contacted Weil to avoid a situation that was potentially dangerous 

to the dog and the motoring public.     The record fully supports Judge Illsley's findings. 

              Weil next argues that the stop was not a valid community caretaker stop 

because he never asked for police assistance and there was no indication he was in distress. 

In previous cases we have upheld community caretaker stops where there was no overt 
request for police assistance.5  We acknowledge that in these previous cases there were 

facts suggesting that the motorists might need help even though they did not ask for it.6 

As Weil points out, there were no facts indicating that he was in distress when Erickson 

stopped him. 

       5   Howell, 115 P.3d at 589-90; Marsh v. State, 838 P.2d 819, 820 (Alaska App. 

1992). 

       6   Howell, 115 P.3d at 589-90; Marsh, 838 P.2d at 820. 

                                            - 4 -                                        2295 

----------------------- Page 5-----------------------

               But we have also upheld community caretaker stops where the police acted 
to prevent a potential  hazard.7    For instance, in Russell v. Anchorage, we held that the 

police were justified in temporarily stopping a vehicle with a misted rear window to ensure 

that the defect was remedied; in reaching that conclusion, we emphasized that there was 

no evidence that the traffic stop was motivated by reasons other than warning the motorist 
of a potential traffic hazard.8 

               Other jurisdictions have similarly ruled that the police are justified in briefly 

detaining a motorist to warn of a potential safety hazard, regardless of whether that hazard 
warrants a citation for a traffic infraction.9   As the Maine Supreme Court explained:  "If 

we were to insist upon suspicion of activity amounting to a criminal or civil infraction 

... we would be overlooking the police officer's legitimate role as a public servant to assist 
those in distress and to maintain and foster public safety."10 

        7  See Rogers-Dwight v. State, 899 P.2d 1389, 1390 (Alaska App. 1995); Russell v. 

Anchorage , 706 P.2d 687, 689 (Alaska App. 1985). 

        8   706 P.2d at 689. 

        9  See, e.g., United States v. King, 990 F.2d 1552, 1560-61 (10th Cir. 1993) (holding 

that motorist's persistent honking during traffic jam at accident site gave officer articulable 
basis to believe motorist might cause another accident, and therefore justified brief contact 
to warn motorist   to   stop   honking, regardless of whether the conduct violated any traffic 
laws); State v. Harrison, 533 P.2d 1143, 1144 (Ariz. 1975) (holding that officer's public 
safety duties justified stopping vehicle because it was weaving somewhat and rear tire was 
bouncing);  State v. Pinkham, 565 A.2d 318, 319-20 (Me. 1989) (holding that safety reasons 
can justify stop in the absence of suspected traffic infraction if the stop is based upon specific 
and articulable facts and not a pretext stop; case remanded for determination as to whether 
officer was justified in stopping motorist to warn him of improper lane usage); State v. Oxley, 
503 A.2d 756, 759 (N.H. 1985) (holding that officer was justified in stopping motorist to 
ensure that furniture that appeared inadequately secured did not fall onto the public highways 
and endanger other drivers). 

        10 Pinkham , 565 A.2d at 319. 

                                              -  5 -                                         2295
 

----------------------- Page 6-----------------------

                 Weil   urges   this   court   to   read   the   community   caretaker   doctrine   more 

narrowly, lest it become "a means of avoiding the dictates of Coleman." Under Coleman 

v. State, the police may only conduct an   investigatory stop if they have "reasonable 

suspicion that imminent public danger exists or [that] serious harm to persons or property 
has   recently   occurred."11      The   basic   inquiry   under    Coleman  is   whether   "a   prompt 

investigation [was] required ... as a matter of practical necessity."12 

                 We have never conclusively decided whether the Coleman requirement of 
"imminent public danger" applies to a community caretaker stop.13                    We note that other 

jurisdictions have not taken a uniform approach to this issue; for instance, one court has 

held that, under appropriate circumstances, the police are justified in stopping a vehicle 
to warn the occupants that an item of property is endangered,14 while another jurisdiction 

permits community caretaker stops only when there is "imminent danger to life or limb."15 

                 We have no reason in this case to resolve where Alaska stands on this 

continuum because the district court's factual findings establish that Sergeant Erickson 

had reasonable suspicion to believe Weil's conduct posed an imminent public danger. 

Judge Illsley found that Erickson observed Weil approaching Kalifornsky Beach Road 

on his four-wheeler with a dog tethered on a twenty-foot lead; it was dark out and there 

         11  553 P.2d 40, 46 (Alaska 1976). 

         12  State v. G.B., 769 P.2d 452, 456 (Alaska App. 1989) (quoting Coleman, 553 P.2d 

at 46). 

         13  See   Crauthers,   727   P.2d   at   11   (noting   that   a   community   caretaker   stop   is   not 

analyzed as an investigatory stop requiring articulable suspicion). 

         14  State   v.  Chisholm,      696   P.2d   41,   43  (Wash.     App.   1985)    (remanding      for 

consideration of whether officer was justified in stopping vehicle solely for the purpose of 
informing the driver that his hat was in jeopardy of blowing out of the bed of the vehicle). 

         15  Provo City v. Warden, 844 P.2d 360, 364 (Utah App. 1992). 

                                                   -  6 -                                             2295
 

----------------------- Page 7-----------------------

was   traffic   on   the   road.  These   circumstances   gave   Erickson   reason   to   believe   that 

motorists might be forced to take evasive action if Weil continued across the road. 

                 At the time Sergeant Erickson contacted Weil, neither the dog nor the four- 

wheeler had yet ventured onto the main road.   But Erickson was not obliged to wait for 
an accident to happen to contact Weil;16 the purpose of the stop was to avoid that possible 

outcome, and if Erickson had not immediately observed signs that Weil was intoxicated, 
the stop would have been brief and non-intrusive.17 We conclude that the stop was lawful, 

even if the Coleman requirement that the police have reasonable suspicion of imminent 

public danger applies to a community caretaker stop in the circumstances of this case. 

         Conclusion 

                 We AFFIRM the decision of the district court. 

         16 Dionne v. State, 766 P.2d 1181, 1183 (Alaska App. 1989) ("It is not necessary that 

the officer observe someone do something   dangerous; it is enough that the officer have 
reason to suspect that the person to be stopped is dangerous."). 

         17  G.B.,   769   P.2d   452   (Alaska    App.   1989)    (noting   that  a  minimally    intrusive 

investigatory   stop   may   be   justified   in   circumstances   in   which   the   potential   harm   is   less 
serious). 

                                                   -  7 -                                                2295 
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC